The Republicans’ Gerrymander Scheme
The polls, the data, the legalities. How Robin Vos hopes to triumph.
In recent weeks there has been widespread speculation that the Republican-dominated Legislature would try to exclude Governor Tony Evers from a say in redistricting the state following the 2020 census. GOP legislators would do this by passing revised districts in a joint resolution from the state Assembly and Senate rather than a bill. Unlike a bill, a joint resolution cannot be vetoed by the governor.
It is not clear which side originated this rumor. In late July of last year the liberal Wisconsin Examiner published an article discussing the joint resolution possibility:
Advocates on both sides of recent redistricting battles in Wisconsin have told the Examiner they believe that the Republican-controlled legislature might draw new, gerrymandered voting maps after the 2020 census, using a process that would avoid sending the plan to Democratic Gov. Tony Evers for his signature or veto.
The Examiner raised the possibility that the Wisconsin Institute for Law & Liberty would back such a move, quoting WILL president Rick Esenberg saying he understands the argument that the constitution reserves redistricting to the state Legislature, adding “I don’t think it’s a frivolous argument.” Esenberg further described the joint resolution idea as “the only way out of what is an assured impasse.”
A subsequent Journal Sentinel article paints Esenberg as less enthusiastic for a repeat of the secret redistricting process following 2010 census. Noting that Republicans were roundly criticized for this, the article summarizes Esenberg as saying “lawmakers should not do it again.”
Despite the negative public reaction to the 2011 gerrymander, Assembly Speaker Robin Vos seems intent on following the same basic strategy in the coming year. He said he may have members sign secrecy pledges again if attorneys for lawmakers believe it is necessary. According to the Journal Sentinel, he “said lawmakers would follow a ‘normal process’ in line with what they’ve done in the past.”
He blamed “bad candidates” for the Democrats’ lack of success and not the maps.
“This is a clear example of Democrats fielding faulty candidates where their agenda does not appeal to anybody outside big cities like Madison and Milwaukee,” he said on Wisconsin Public Radio.
In that interview, Vos rejected Governor Evers’ plan to establish a nonpartisan commission to recommend new legislative districts: “This is just Democrats rallying their base. This is not something that actually has a huge appeal to anybody outside of the Democrat activists.”
That’s not what polls show. In January 2019, the Marquette Law School Poll asked whether redistricting should be done by the governor and legislature or by a nonpartisan commission. As the next graph shows, the commission was far more popular than the present practice, even among Republicans.
Vos’ attempt to blame bad Democratic candidates is not supported by actual election results. In the 2018 election, Democrat Tony Evers won the election with 50.6 percent of the two-party vote, versus 49.4 percent for Scott Walker, yet Evers won just 36 percent of Wisconsin’s 99 Assembly districts, compared to 63 percent for Walker. The results show that gerrymandering created a majority of districts that are strongly Republican, which makes it easy for most GOP legislative candidates to win.
The next chart compares the projected number of districts likely to be won by each party’s candidate in the case of a tied statewide vote before the Republican gerrymander—in 2008–and after—in 2018. The boundaries of the 2008 districts were set by a panel of federal judges. Those in 2018 were set by the Republican legislators and governor.
The next chart shows projections of the number of Assembly seats that would have been won by each party based on their statewide vote totals in each of the elections since the 2010 redistricting. Those for 2012 and 2016 are based on the votes for president; those for 2014 and 2018 were based on the race for governor. In all years it shows Republicans winning at least 60 percent of seats with just 50 percent of the total statewide vote.
A test for fairness in redistricting is symmetry: if by winning 53 percent of the vote, for example, Republicans would win 65 seats, then Democrats should win 65 seats with a 53 percent vote share. Instead, they would be projected to win just 41 districts, leaving Republicans thoroughly in control.
Compare this to the 2008 election, as shown below. While not perfectly symmetric (there’s a sight edge for Republicans) it comes close.
The next two charts help explain how the gerrymander worked. The first shows the distribution of districts in 2008, with majority Republican districts on the left in red and Democratic ones (in blue) on the right.
Compare this to the 2018 gubernatorial election. Democratic voters have been “packed” into districts already heavily (62 to 93 percent) Democratic. This allows the “cracking” of districts that previously had a small majority of Democrats and those that were competitive, yielding many new majority Republican districts.
One quick and dirty way to test for gerrymandering is to compare the mean to the median district vote. The median is the midpoint, where half the districts have a larger portion of, say, Republicans and half have fewer. If the mean equals the median, the distribution is symmetric. In the 2018 election, the mean district vote for governor was 49.4% for Walker and 50.6% for Evers. By contrast the median vote was 54.2% for Walker and 45.8% for Evers.
The 2011 redistricting succeeded in its goal of making it practically impossible for Democrats to win the Wisconsin legislature. Although Vos has been cagey about whether he will try to repeat that he seems to be intent in cutting out the governor.
Such an attempt, as Esenberg suggests, starts with a reinterpretation of the language of the state constitution. Article IV Section 17 (2) of the state constitution states that:
No law shall be enacted except by bill.
Article V Section 10 further specifies:
(a) Every bill which shall have passed the legislature shall, before it becomes a law, be presented to the governor.
(b) If the governor approves and signs the bill, the bill shall become law.
Section 3 of Article IV states that:
At its first session after each enumeration made by the authority of the United States, the legislature shall apportion and district anew the members of the senate and assembly, according to the number of inhabitants.
The idea of cutting the governor out of this normal legislative process has come up before: In a 1961 decision, Reynolds v. Zimmerman, the Wisconsin Supreme Court rejected a previous attempt to use a joint resolution process for redistricting. Fundamental to this decision was the consideration that, while individual legislators represented the interests of their districts, only the governor represented the interests of Wisconsin as a whole.
However, the court would face another impediment besides the Reynolds decision. Right now there is a law on the books that redistricted the state. Both 2011 Act 43 (repealing and replacing previous definitions of legislative districts) and 2011 Act 44 (doing the same to Congressional districts) are part of Wisconsin law.
Thus, even if the state Supreme Court decides to reverse its predecessor, it appears that the districts established in 2011 would remain as part of Wisconsin law: It seems doubtful that a joint resolution could repeal and replace an act. Yet if the 2011 districts remained law this would violate the state constitution’s mandate to reapportion the districts every ten years. So how could the Supreme Court, even one so pliant to Republican wishes, justify overriding so much constitutional law?
This appears to be be what Vos, in his eagerness to keep power in Republican hands, is hoping for. It has positioned his Republicans as the enemy of representative government, who would willingly violate the wishes of an overwhelming majority of Wisconsin’s voters.
More about the Gerrymandering of Legislative Districts
- City Hall: Ballots Won’t Have Duplicate Gerrymandering Questions - Jeramey Jannene - Feb 27th, 2020
- Did Gerrymandering Kill Medicaid Expansion? - Erik Gunn - Feb 25th, 2020
- Data Wonk: The Republicans’ Gerrymander Scheme - Bruce Thompson - Feb 5th, 2020
- The State of Politics: Redistricting Fight Is One Year Away - Steven Walters - Feb 3rd, 2020
- Hesselbein Advocates for Fair Maps Constitutional Amendment - State Rep. Dianne Hesselbein - Jan 7th, 2020
- ‘Fair Maps’ Groups to Train Activists - Rob Mentzer - Nov 8th, 2019
- City Hall: City Voters Will Get Gerrymandering Referendum - Jeramey Jannene - Oct 16th, 2019
- Majority of Wisconsin Wants Non-Partisan Redistricting - Ruth Conniff - Oct 2nd, 2019
- Legislation on redistricting ballot issue moves forward - Ald. Cavalier “Chevy” Johnson - Sep 17th, 2019
- Data Wonk: Gerrymandering Is Built on Lies - Bruce Thompson - Sep 12th, 2019
- Data Wonk: The Future of Wisconsin Gerrymandering - Bruce Thompson - Aug 14th, 2019
- Republicans Deny New Gerrymander Plan - Ruth Conniff - Jul 30th, 2019
- GOP Could Bypass Evers, Gerrymander Again - Ruth Conniff - Jul 29th, 2019
- Op Ed: The Game is Rigged in Wisconsin - Spencer Black - Jul 21st, 2019
- Gerrymandering Foes Push Reform - Erik Gunn - Jul 17th, 2019
- Rep. Robyn Vining Continues Fight for Fair Maps - State Rep. Robyn Vining - Jul 16th, 2019
- Statement on Nonpartisan Redistricting Reform Bill - State Rep. Lisa Subeck - Jul 16th, 2019
- Gerrymandering Bill is Bipartisan - Laurel White - Jul 12th, 2019
- Op Ed: Redistricting Now Up to Citizen Action - Jay Heck - Jul 2nd, 2019
- Rep. Robyn Vining Says Fight for Fair Maps Is Not Over - State Rep. Robyn Vining - Jun 28th, 2019
- U.S. Supreme Court Allows Gerrymandering - Laurel White - Jun 28th, 2019
- Statement on U.S. Supreme Court decision on Partisan Gerrymandering - Fair Elections Project - Jun 27th, 2019
- Waupaca County Opposes Gerrymandering - Matt Rothschild - Apr 29th, 2019
- 45 Counties Want to Ban Gerrymandering - Wisconsin Democracy Campaign - Apr 19th, 2019
- Data Wonk: Walker Seeks to Gerrymander America - Bruce Thompson - Apr 3rd, 2019
- Murphy’s Law: The Arrogance of Robin Vos - Bruce Murphy - Mar 21st, 2019
- Data Wonk: The Gerrymander Wars March On - Bruce Thompson - Mar 20th, 2019
- The State of Politics: How Evers Would End Gerrymandering - Steven Walters - Mar 18th, 2019
- Evers’ Budget Will Include Nonpartisan Redistricting Process - Shawn Johnson - Feb 27th, 2019
- Representative Subeck Applauds Governor Evers’ Plan to Ensure Fair Election Maps - State Rep. Lisa Subeck - Feb 26th, 2019
- Rep. Hesselbein Supports Governor Evers’ Fair Maps Plan - State Rep. Dianne Hesselbein - Feb 26th, 2019
- Rep. Spreitzer Supports Gov. Evers’s Redistricting Reform - State Rep. Mark Spreitzer - Feb 26th, 2019
- Statement on Governor Evers’ announcement he will include nonpartisan redistricting reform in his proposed budget - Wisconsin Fair Elections Project - Feb 26th, 2019
- Rep. Robyn Vining Embraces Gov. Evers’ Inclusion of Redistricting in Budget - State Rep. Robyn Vining - Feb 26th, 2019
- Op Ed: Why We Oppose Gerrymandering - Andrea Kaminski - Feb 20th, 2019
- Murphy’s Law: Republicans Oppose Gerrymandering - Bruce Murphy - Jan 29th, 2019
- Op Ed: Gerrymandering Costs Taxpayers Millions - James Rowen - Jan 23rd, 2019
- Data Wonk: Gerrymander is Alive and Well - Bruce Thompson - Dec 12th, 2018
- Board Adopts Supervisor Moore Omokunde Proposal to Decriminalize Marijuana - Sup. Supreme Moore Omokunde - Nov 6th, 2018
- Murphy’s Law: The Fight Against Gerrymandering - Bruce Murphy - Oct 30th, 2018
- Democrats Refile Redistricting Suit - Shawn Johnson - Sep 16th, 2018
- Amended Whitford Complaint Highlights Harm Caused by Wisconsin’s Partisan Gerrymander to 40 Plaintiffs Across 34 Districts - Campaign Legal Center - Sep 14th, 2018
- The State of Wasted Votes - Malia Jones - Jul 2nd, 2018
- Data Wonk: Can Democrats Still Contest Gerrymander? - Bruce Thompson - Jun 27th, 2018
- The State of Politics: Democrats Rejected Redistricting Reform - Steven Walters - Jun 25th, 2018
- Supreme Court Punts on Gerrymandering - Shawn Johnson - Jun 18th, 2018
- Republican State Leadership Committee: The Efficiency Gap is “Sociological Gobbledygook” - Republican State Leadership Committee - Jun 18th, 2018
- Response to Gill v Whitford decision to remand back to trial court - Fair Elections Project - Jun 18th, 2018
- The Art Of Gerrymandering Milwaukee - Malia Jones - Jun 9th, 2018
- The Push for Nonpartisan Redistricting - Cathleen Draper - Jun 5th, 2018
- U.S. Supreme Court Nears Decision on Wisconsin Redistricting Case - Cathleen Draper - Jun 2nd, 2018
- Data Wonk: Many Republicans Oppose Gerrymandering - Bruce Thompson - Mar 14th, 2018
- The State of Politics: Will U.S. Supremes Rule on State Districts? - Steven Walters - Feb 19th, 2018
- Back in the News: Majority Now Backs Fair Redistricting - Bruce Murphy - Feb 5th, 2018
- Data Wonk: John Roberts’ Nightmare - Bruce Thompson - Oct 11th, 2017
- The State of Politics: You Be The Judge on Redistricting - Steven Walters - Oct 2nd, 2017
- Op Ed: U.S. Supreme Court Should End Partisan Gerrymandering - Andrea Kaminski - Sep 26th, 2017
- Data Wonk: Judges Consider a Democratic Gerrymander - Bruce Thompson - Aug 30th, 2017
- Op Ed: 24 Counties Have Voted for Fair Maps - Matt Rothschild - Aug 25th, 2017
- Data Wonk: Right Wing Seeks to End Democracy? - Bruce Thompson - Aug 23rd, 2017
- Data Wonk: US Supreme Court Wrong on Redistricting? - Bruce Thompson - May 31st, 2017
- Op Ed: Save Taxes With Nonpartisan Redistricting - Andrea Kaminski and Lindsay Dorff - May 26th, 2017
- Data Wonk: Why GOP Backs Gerrymander - Bruce Thompson - May 24th, 2017
- Data Wonk: State’s Political Map At Issue - Bruce Thompson - May 18th, 2017
- Rep. Peter Barca Statement on Attorney General Appeal of Redistricting Decision - State Rep. Peter Barca - Feb 24th, 2017
- Fair Elections Project calls upon Legislature to focus on fair map drawing process - Wisconsin Fair Elections Project - Feb 24th, 2017
- Campaign Cash: GOP’s Redistricting Lawyers Are Big Donors - Matt Rothschild - Feb 6th, 2017
- Op Ed: Reject Partisanship, Redraw Voting Maps - Andrea Kaminski - Feb 3rd, 2017
- Rep. Peter Barca Statement on Assembly Organization Committee Secret Ballot - State Rep. Peter Barca - Feb 2nd, 2017
- Court Watch: Court’s Redistricting Order A Problem? - Bruce Thompson - Feb 1st, 2017
- Rep. Hesselbein Calls for Open, Transparent, and Public Process for Drawing New Legislative Lines - State Rep. Dianne Hesselbein - Jan 27th, 2017
- Wisconsin Federal Court Permanently Blocks State Redistricting Plan - Wisconsin Fair Elections Project - Jan 27th, 2017
- Data Wonk: 2016 Election Results Prove Gerrymandering - Bruce Thompson - Dec 28th, 2016
- Plaintiffs call for new maps for Wisconsin legislative district - Wisconsin Fair Elections Project - Dec 21st, 2016
- Data Wonk: Measuring Wisconsin’s Gerrymandering - Bruce Thompson - Dec 7th, 2016
- Sen. Taylor statement on federal court ruling against Republican gerrymandering - State Sen. Lena Taylor - Nov 21st, 2016
- Statement on Redistricting Ruling - State Sen. Chris Larson - Nov 21st, 2016
- Federal Court overturns unconstitutional gerrymandering of Wisconsin legislative districts - Wisconsin Fair Elections Project - Nov 21st, 2016
- Rep. Barca Statement on Redistricting Decision - State Rep. Peter Barca - Nov 21st, 2016
- HISTORIC DECISION: Wisconsin Federal Court Strikes Down Partisan Gerrymander and Adopts Groundbreaking Legal Standard - Campaign Legal Center - Nov 21st, 2016
- Murphy’s Law: The Myth of Democratic Gerrymandering - Bruce Murphy - Jan 26th, 2016
- Data Wonk: Can New Approach End Gerrymandering? - Bruce Thompson - Jan 6th, 2016
- Federal Lawsuit to Overturn Unconstitutional Gerrymandering of Wisconsin Legislative Districts Continues - Wisconsin Fair Elections Project - Dec 17th, 2015
- Can Auto Redistricting End Gerrymandering? - Laura Thompson - Dec 10th, 2015
- Assembly candidate Brostoff calls for non-partisan redistricting - State Rep. Jonathan Brostoff - Apr 17th, 2014
- Redistricting reform the antidote to Republican extremism - Press Release - Nov 13th, 2013
- Lazich, August, Fitzgerald and Vos Still Silent on Redistricting Reform Public Hearings As Support & Pressure Builds - Common Cause in Wisconsin - Sep 17th, 2013
- Freshmen legislators push new legislation to correct flawed partisan redistricting process - Press Release - Apr 11th, 2013